MICHAEL VAUGHN et al., Plaintiffs, v. RUSSELL E. TAYLOR, Defendant 2:21-CV-61 United States District Court, E.D. Tennessee, GREENEVILLE DIVISION Filed November 16, 2021 Counsel Brent R. Watson, Bunstine, Watson & McElroy & Becker, Knoxville, TN, for Plaintiffs. Michael Vaughn, Kingsport, TN, Pro Se. Timothy Kendrick, Kingsport, TN, Pro Se. Karissa Hazzard Range, Penn Stuart & Eskridge, Bristol, TN, Wade W. Massie, Penn, Stuart & Eskridge, Abingdon, VA, for Defendant. Wyrick, Cynthia Richardson, United States Magistrate Judge ORDER *1 Defendant has filed a Motion to Compel [Doc. 28]. This motion is before the Court for review, consideration, and determination by the undersigned pursuant to 28 U.S.C. § 636. For reasons articulated below, the Motion is GRANTED in part and DENIED in part. I. BACKGROUND The instant motion addresses purported deficiencies in Plaintiffs' discovery responses. Defendant claims that Plaintiff Vaughn has failed to produce certain documents although requested through written discovery. Defendant further notes that that Plaintiff Vaughn stated during his deposition that he had the documents in his possession which had not been produced, but despite defense counsel sending Plaintiffs' counsel[1] a letter on September 2, 2021 outlining the purported deficiencies, the documents at issue have not been received. As such, Defendant filed his Motion to Compel on September 13, 2021. In support of the relief sought, Defendant attached copies of Plaintiff Vaughn's deposition transcript, defense counsel's September 2, 2021 letter to Plaintiffs' counsel, Plaintiffs' initial discovery responses, and a list of discovery that remains outstanding. [Docs. 28-1 through -4]. In their Response [Doc. 30], Plaintiffs aver they have disclosed all documents responsive to Defendant's discovery requests and assert the instant motion was made in bad faith. Nevertheless, Plaintiffs' counsel addresses Defendant's list of purportedly outstanding discovery. Defendant then filed a Reply [Doc. 31], in which Defendant offers additional support for an order compelling the information set forth in his list of outstanding discovery. See [Doc. 28-4]. The matter is now ripe for resolution. II. ANALYSIS In evaluating this discovery-related motion, the Court notes that “[d]iscovery is the lifeblood of litigation and, as such, it ‘must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense).’ ” Siser N. Am., Inc. v. Herika G. Inc., 325 F.R.D. 200, 202 (E.D. Mich. 2018) (quoting Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 360 (D. Md. 2008)). The scope of discovery is within the sound discretion of the Court. Canter v. Ankermes Blue Care Elect Preferred Provider Plan, 328 F.R.D. 485, 495 (S.D. Ohio 2018). The Court must assess whether discovery is transparent and proportional in determining whether it is appropriate to compel the additional production of information and/or documents. Federal Rule of Civil Procedure 26 sets the parameters for discovery and permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). The Court may compel discovery where evidence demonstrates that a party has failed to fully respond to discovery requests. Fed. R. Civ. P. 37(a)(1). The party seeking to compel a further response to discovery bears the burden of demonstrating that requested information is relevant. Gruenbaum v. Werner Enters., 270 F.R.D. 298, 302 (S.D. Ohio 2010). Before addressing such disputes with the Court, the parties are obligated first to confer and attempt in good faith to resolve them. O'Malley v. NaphCare Inc., 311 F.R.D. 461, 464 (S.D. Ohio 2015). *2 As a preliminary matter, despite Plaintiffs' contention to the contrary, the Court is satisfied that Defendant's counsel attempted to resolve this matter in good faith. The Court notes that the interrogatories and requests for production giving rise to the motion at issue are attached to Defendant's Motion as Document 28-3 and are further summarized in Document 28-4. In ruling on Defendant's motion, the Court will address each item contained in Defendant's list of purportedly deficient discovery responses and Plaintiff Vaughn's position as to the deficiencies. [Docs. 28, 28-4, 30]. Defendant asserts that Plaintiffs have failed to disclose “all documents involving the supercritical extractor allegedly purchased by Michael Vaughn and contributed to CPH Brands, LLC....” This assertion relates to Interrogatories 5 and 6 and Request 3 and 4. In response, Plaintiffs' counsel states that he has identified and provided an invoice for the supercritical extractor but has been unable to obtain other documents related to the supercritical extractor after making efforts to obtain those records. Plaintiffs further aver that they have disclosed the requested documents in their possession and have made a good faith effort to locate and disclose documents not in their possession. In reviewing Plaintiff Vaughn's deposition, the Court notes he did not state that he had other documents he could produce regarding the extractor except he stated that he should have an email which contained a link to the invoice at issue[2]. Instead, he stated generally that he thought he used money from his bank account to purchase the extractor and the purchase might have been made via a wire transfer or money order. Plaintiff Vaughn further stated that he found the extractor on eBay but then purchased it directly from the seller. He could not remember with certainty whether he used a bank account to make the purchase and if he used one, which bank held the account, but he knew he did not use cash as he did not pay the seller in-person. Additionally, Plaintiff Vaughn testified that he used almost all the money he had to purchase the equipment. While the Court finds it difficult to fathom that Plaintiff Vaughn cannot remember the method used to transfer $225,000.00 to purchase equipment when it supposedly left him without any other significant funds, the Court cannot order him to produce documents he claims not to have or be able to obtain. At the same time, as to email communications, Plaintiff Vaughn stated in his deposition that he had retained the email containing a link to the invoice at issue. Defendant has requested that all email communications regarding the extractor be provided in native form, including metadata. Given that Plaintiff Vaughn now contends that he cannot locate the email at issue, the Court orders him to provide access to this email account to an expert retained by Defendant so the email account can be searched for documents related to this purchase, including any evidencing the method used to pay for said purchase. Defendant shall be entitled to obtain copies of any such email communications. Plaintiff may likewise retain an expert to be present while Defendant's expert analyzes the email account. Defendant shall not be entitled to review or retain any unrelated email communications except as otherwise set forth herein. Next, Defendant alleges that Plaintiffs have failed to disclose “[a]ny FDA license or other license for the sale of food” as was requested in Interrogatory 7 and Request 5. In response, Plaintiffs' counsel states that he has identified the licenses which were issued and contributed. As to Request 5, Plaintiffs aver the documents requested are in the possession of Defendant as they were left at the LLC's facilities when Defendant took them over. Defendant suggests additional copies of these documents may be saved in Plaintiff Vaughn's email and further notes that the mere fact that Defendant might have copies of some of the documents independently does not relieve Plaintiffs of the obligation to produce them. [Doc. 31, p. 5]. During the search of Plaintiff Vaughn's email communications authorized above, Defendant's expert shall also be entitled to search for any email communications relating to the licenses at issue and Defendant is entitled to obtain a copy of all such communications. Plaintiff Vaughn shall not delete any email communications which predate this Order from the email account at issue pending Defendant's analysis of the account. *3 Additionally, Defendant contends that in their responses to Interrogatory 14 and Request 12, Plaintiffs have failed to disclose all documents relating to the property formerly owned by the LLC which Plaintiff Kendrick took from the premises after the sale to Holston Hemp, LLC. Defendant alleges a lab, hemp flower, and a DVR were taken from the LLC. As to the lab and DVR, the Court does not have evidence at this juncture indicating further documents are in Plaintiffs' possession; however, Plaintiffs state in their written discovery responses that both are in the possession of Plaintiffs. As to the hemp flower, Defendant provides a pin cite to deposition testimony wherein Plaintiff Kendrick admits that Plaintiffs sold the hemp flower for $10,000.00 and kept the proceeds. [Doc. 31-1, p. 8]. Plaintiff Vaughn's testimony indicates that he sold the hemp flower because he believed he had ownership rights to it. [Doc. 28-1, p. 100-01]. The Court will require Plaintiffs to conduct a further search for records relating to the hemp flower sale and to produce all records of any type related to the sale, including accounting records that evidence the proceeds received and any tax return on which the amount received would have been reported. If Plaintiffs state that such records do not exist, they shall explain why there are no records reflecting the sale and the reporting of the income from it. Finally, as to the lab and DVR, the Court orders Plaintiffs to produce both for inspection by Defendant within 10 business days from entry of this Order since Plaintiffs claim that there are no documents which exist that provide information about the items. Plaintiffs shall coordinate with defense counsel to make these items available during normal business hours. Citing to Plaintiffs' response to Request 19, Defendant asserts that Plaintiffs have failed to provide all text messages between Plaintiffs relating to Defendant, the LLC, the business or assets of the LLC, or Holston Hemp, LLC. While Defendant concedes that both Plaintiffs have provided screenshots of certain text messages, neither has provided any text messages which were sent between the Plaintiffs themselves. In response, Plaintiffs state that they have provided all text messages in their possession. The Court will require that Plaintiffs produce the cellular telephones used to send and receive text messages during the relevant time to Defendant's counsel for inspection in the presence of Plaintiffs. Defendant's counsel may utilize the services of an expert during the inspection if counsel chooses to do so. Plaintiffs are instructed not to delete any text messages from these cellular telephones pending the inspection. Plaintiffs shall produce these cellular telephones at the same time as they produce the DVR for inspection. Defendant shall be entitled to obtain copies of all text messaging between Plaintiffs as well as copies of the text messages previously produced by Plaintiff where only screenshots were provided. Defendant contends further that Plaintiffs have failed to produce all books and records of the LLC and documents reflecting the sale of the LLC, as requested in Requests 22 and 24. Defendant cites to portions of Plaintiffs' deposition testimony to indicate that there are additional documents to be produced. Specifically, Defendant alleges that both Plaintiffs are in possession of evidence reflecting direct communication with customers and prospective customers. Defendant further alleges that Plaintiff Vaughn should be compelled to produce evidence supporting his contention that some flower or biomass was gifted to him as well as evidence to support his assertion that $40,000-$50,000 in product was sent out for sale every morning. In response, Plaintiffs contend that they do not have these documents in their possession. Defendant's reply asks that the Court bind Plaintiffs to this response and preclude use of undisclosed material. Plaintiffs are hereby granted 14 days from entry of this Order to produce any documentation in their possession or to which they have access to support these contentions and to the extent that they fail to do so, Defendant's request to bind Plaintiffs to their response and preclude them from using undisclosed materials is granted. *4 Next, Defendant asserts Plaintiffs failed to produce all photographs and video related to the LLC or its products, equipment, or other assets as requested in Request 25. In support, Defendant cites to Plaintiffs' deposition testimony stating they had a DVR with responsive information. Defendant asks the Court to compel production of the DVR. In his reply, Defendant further directs the Court to Plaintiffs' suggestion in their response that all other documents would be provided. Plaintiffs respond by clarifying that they have a video recording on the DVR that will be produced as soon as it can be copied. As stated above, Plaintiffs shall promptly produce the DVR for inspection, which will allow Defendant to obtain a copy of that recording and any others relevant to this litigation. Next, Defendant asserts that Plaintiffs have failed to provide certain communications between themselves and hemp farmers, including Cody Weaver, despite the communications being requested in Request 26. Citing to the depositions generally, Defendant suggests that other communications exist which have not been produced. In response, Plaintiffs state that they have provided all communications they have located and acknowledge their responsibility to provide updated disclosures if other communications are later identified. Defendant's counsel shall be entitled to have Defendant's expert search the email communications of Plaintiff Vaughn and the cellular telephones of both Plaintiffs for communications addressing this issue. Defendant contends that Plaintiffs have also failed to produce communications in their possession regarding a potential customer in Texas to whom Defendant purportedly refused to make a sale, asserting that these documents are responsive to Requests 27 and 28. On the other hand, Plaintiffs claim to have provided all documents in their possession related to the sale. However, Defendant notes that Plaintiff Vaughn has referred to an invoice and certificate of authentication which have not been produced. [Doc. 28-1, p. 131-33] and [Doc. 28-3 at 15]. To the extent that Plaintiffs have these documents in their possession or have access to them, they shall provide them to Defendant. Finally, Defendant asserts that Plaintiffs have failed to produce all documents relating to the issue of whether they had $50,000.00 to purchase Defendant's interest in the LLC, with these documents being requested in Request 29. In support, Defendant directs the Court to Plaintiffs' depositions wherein they state they were going to obtain the funds from attorney Andy Law. Defendant states that no communications between Mr. Law and Plaintiffs have been produced but there is no evidence before the Court that written communications took place between Plaintiffs and Mr. Law. Plaintiffs claim that they have located no documents responsive to this request and acknowledge their duty to supplement disclosures if they later identify information responsive to this request. As Defendant points out in reply, Plaintiff Vaughn testified in his deposition that Plaintiffs intended to secure the $50,000 from Mr. Law, but Plaintiff Vaughn further stated that he was unsure whether any documents existed evidencing such an agreement. [Doc. 28-1, p. 91]. While the lack of evidence of Plaintiffs' communications with Mr. Law does not aid Plaintiffs' case, there is no evidence to suggest that they have withheld anything in responding to this specific request. At the same time, Defendant's expert shall be permitted to search the email communications of Plaintiff Vaughn and the text messages from the cellular telephones of both Plaintiffs to determine whether any communications exist relating to Mr. Law. Moreover, Plaintiffs shall have an additional 14 days from entry of this Order to produce documentation responsive to this request and if none is produced, they shall be barred from latter using documents which would have been responsive to this request but were not produced. III. ATTORNEY'S FEES *5 The Court next considers Defendant's request to award attorney's fees and costs. In reviewing discovery motions, the Court notes that it has discretion to award attorney's fees when motions are granted, even if in part. Fed. R. Civ. P. 37(a)(5)(C); see e.g. Thomas v. Bannum Place of Saginaw, 421 F. Supp. 3d 494, 497 (E.D. Mich. 2019) and Morgan v. AMISUB (SFH), Inc., No. 18-CV-2042-TLP-TMP, 2020 WL 4274586, at *5 (W.D. Tenn. July 24, 2020), aff'd, No. 218CV02042TLPTMP, 2020 WL 4917731 (W.D. Tenn. Aug. 21, 2020). The Court will not award attorney fees to Defendant at this time; however, should Plaintiffs fail to abide by the requirements of this Order, the Court will consider ordering awarding attorney fees and costs related to the original Motion to Compel as well as any further motion to compel that Defendant may find it necessary to file. IV. CONCLUSION For reasons set forth above, the Motion to Compel is GRANTED in part and DENIED in part as specifically set forth above. If Defendant has difficulty obtaining Plaintiffs' compliance with the terms of this Order, Defendant shall promptly file an additional motion setting forth any lack of compliance. Given that Plaintiffs failed to appear for a properly noticed status conference in this matter on the date of entry of this Order, Defendant shall be relieved of the obligation of contacting chambers for a discovery conference and may proceed directly to filing a motion if necessary. SO ORDERED: Footnotes [1] References to Plaintiffs' counsel refer to Plaintiffs' former counsel who withdrew from this matter in October 2021. [Doc. 41]. [2] Plaintiff Vaughn appeared to contend that he obtained a copy of the invoice via a link in an email he produced from his “bigdaddymv@live.com account, which he still had. He stated that he had not deleted the email.